Appeal by defendant pursuant to N.C. Gen. Stat. § 7A-32(c) to
review the judgment and order entered on or about 26 May 2004 by
Judge James E. Lanning in Superior Court, Mecklenburg County.
Heard in the Court of Appeals 10 January 2007.
Attorney General Roy Cooper, III by Assistant Attorney General
Derrick C. Mertz for the State.
Public Defender Isabel Scott Day by Assistant Public Defender
Julie Ramseur Lewis for defendant-appellant.
STROUD, Judge.
This matter is before the Court on writ of certiorari to
review the trial court judgment and restitution order entered upon
defendant's convictions for attempted robbery with a dangerous
weapon and assault with a deadly weapon. Defendant raises four
questions for review on appeal: (1) whether the trial court erred
by admitting inadmissible hearsay testimony from three separate
witnesses, (2) whether the trial court's admission of hearsay
testimony violated defendant's Sixth Amendment right to confront
witnesses against him, (3) whether the trial court erred by failingto consider defendant's available resources when ordering defendant
to pay $871.65 restitution to the victim, and (4) whether defendant
was prejudiced by ineffective assistance of counsel because defense
counsel did not object to the admission of hearsay testimony and to
the amount of restitution ordered by the trial court. We find no
reversible error in defendant's trial and affirm the trial court's
restitution order.
I. Background
On 23 July 2003, the Mecklenburg County Grand Jury indicted
defendant Stephen Baldwin for the offenses of assault with a deadly
weapon and robbery with a dangerous weapon. Defendant was tried at
the 24 May 2004 Criminal Session of Superior Court, Mecklenburg
County, with Judge James E. Lanning presiding.
The State called nine witnesses at trial, including the victim
Jose Sanchez, eyewitness Andres Garcia, Mecklenburg County Police
Department Officers Todd Mozingo, A.S. Rice, and R. Quilez, and
and Mecklenburg County Police Department Detective Randy Carroll.
Evidence presented by the State established that defendant
attempted to rob Sanchez at gunpoint at approximately 4:50 p.m. on
23 May 2003 in the parking lot outside Sanchez's apartment, which
was located at 6200A Elgywood Lane in Charlotte, North Carolina.
At that time, Sanchez and his brother-in-law Garcia were returning
home from work and they had just exited their car.
Defendant approached Sanchez while he was locking the car door
and Garcia was walking toward the apartment. He pointed a revolver
at Sanchez's head and demanded Sanchez's money. Sanchez respondedthat he did not have any money. Hearing the altercation, Garcia
started to walk back toward Sanchez and defendant. Defendant then
pointed the revolver at Garcia and pulled the trigger, but the gun
did not fire.
In response, Sanchez hit defendant on the right hand with his
lunch box. Defendant cursed at Sanchez and hit him on the face
with the gun. Defendant also tried to shoot Sanchez twice by
pointing the gun at Sanchez's head and body and pulling the
trigger. Again, the gun did not fire. Sanchez threw the lunch box
at defendant, after which defendant shot Sanchez in the hand.
Defendant fired one additional shot that struck the ground.
Defendant then ran to a white car and entered the rear seat.
As the car drove away, defendant fired two more shots that also
struck the ground. Garcia drove Sanchez to the hospital where
Sanchez was treated and released.
Responding Officers Mozingo and Rice saw three people riding
in a white car near Sanchez's apartment approximately one hour
after the shooting. Sanchez's neighbors pointed at the car,
telling the officers that it was the car they were looking for, but
when the officers approached the car, it “sped away.” Officers
Mozingo and Rice followed the white car, which came to a “running
stop” against another vehicle in the 6200 block of Elgywood Lane.
Defendant and one other man exited the car while it was still
moving and fled through the neighborhood. Officer Mozingo and
Officer Rice pursued and apprehended both men on foot. WhenOfficer Mozingo apprehended defendant, he was hiding in a storage
building.
Defendant was taken into custody and placed in the back of a
patrol car. The man who fled with defendant and the third person
in the white car, a woman, were also taken into custody. Officers
Mozingo and Rice recovered a single shot .45 caliber pistol from
the back seat of the white car and cartridges and bullets for use
in a semi-automatic handgun from the glove compartment. They did
not find a revolver. The officers learned later that the white car
had been stolen in Charlotte, North Carolina on 19 May 2003.
Thereafter, Sanchez and Garcia identified defendant as the
person who assaulted them at gunpoint and attempted to rob them.
In so doing, both Sanchez and Garcia expressly ruled out the two
other detained individuals as the shooter. They also gave
responding officer Quilez written statements. Defendant was then
transported to the police station.
At the police station Detective Randy Carroll interviewed
defendant. During the interview, defendant gave Detective Carroll
an alibi, stating that he was at home with his stepmother Cheryl
Madison at 4:50 p.m., the approximate time Sanchez was shot. When
Detective Carroll spoke with Madison by phone, she stated that
defendant had left home at 4:00 p.m.
Defendant did not present evidence at trial. On 25 May 2004,
the jury found defendant guilty of attempted robbery with a
dangerous weapon and assault with a deadly weapon. Judge Lanning
sentenced defendant to a consolidated sentence of sixty-eight toninety-one months imprisonment and ordered payment of $871.65
restitution to Sanchez. This is the cost of medical expenses
incurred by Sanchez for treatment of his injuries. On 14 July
2005, this Court granted defendant's petition for writ of
certiorari to review the trial court judgment and restitution
order.
II. Hearsay and Confrontation
Defendant assigns plain error to the trial court's admission
of the testimony of four witnesses at trial: Officer Mozingo,
Officer A.S. Rice, Officer R. Quilez, and Detective Randy Carroll.
In support of his assignments, defendant argues that portions of
the officers' testimony contained inadmissible hearsay that should
have been excluded pursuant to North Carolina Rules of Evidence,
Rule 802, and that admission of the disputed testimony violated the
Confrontation Clauses of the Sixth Amendment to the United States
Constitution and Article one, Section twenty-three of the North
Carolina Constitution.
A. Standard of Review
Plain error is error “so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have reached.”
State v. Bagley, 321 N.C. 201, 214, 362 S.E.2d 244, 251 (1987)
(quoted in
State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193
(1993)),
cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). A
criminal defendant may seek plain error review of “a question which
was not preserved by objection noted at trial” by “specifically anddistinctly” assigning plain error to the “judicial action
questioned.” N.C. R. App. P. 10(b)(4) (2005).
B. Hearsay
N.C. Gen. Stat. § 8C-1, Rule 801 defines hearsay as “a
statement, other than one made by the declarant while testifying at
trial or hearing, offered in evidence to prove the truth of the
matter asserted.” For purposes of N.C. Gen. Stat. § 8C-1, Rules
801 through 806, “the nonverbal conduct of a person” is a statement
“if it is intended by him as an assertion.” N.C. Gen. Stat. § 8C-
1, Rule 801(a)(2). Thus, hand gestures are statements when they
are intended by the person gesturing to communicate a fact or idea.
State v. Satterfield, 316 N.C. 55, 340 S.E.2d 52 (1986) (declarant
made a statement by gesturing toward a chest of drawers which
contained a knife allegedly used to commit a rape and robbery).
“Oral assertions” are also “statements” for purposes of N.C. Gen.
Stat. § 8C-1, Rules 801 through 806.
Out-of-court statements offered for the purpose of
corroboration are not hearsay because they are not offered to prove
the truth of the matter asserted; rather, such statements
strengthen or confirm other evidence.
State v. Riddle, 316 N.C.
152, 156-57, 340 S.E.2d 75, 77-78 (1986). For example, this Court
has held that a non-testifying forensic firearms examiner's out-of-
court statement that the two nine millimeter bullets recovered from
a victim's body were fired from the defendant's gun was properly
admitted to corroborate the testimony of the State's forensic
firearm's expert, who concluded the same.
State v. Walker, 170N.C. App. 632, 613 S.E.2d 330,
disc. rev. denied, 359 N.C. 856, 620
S.E.2d 196 (2005). Moreover, “[a] prior
consistent statement of a
witness is admissible to corroborate the testimony of the witness
whether or not the witness has been impeached.”
State v. Jones,
329 N.C. 254, 257, 404 S.E.2d 835, 836 (1991) (emphasis added).
Likewise, out-of-court statements offered to explain the
subsequent conduct of the person to whom the statement was directed
are not hearsay. This is true even when the out-of-court statement
was directed to an investigating police officer, if the statement
is offered to explain the subsequent course of the officer's
investigation.
State v. Alexander, ___ N.C. App. ___, ___, 628
S.E.2d 434, 436 (2006),
appeal dismissed and disc. rev. denied, ___
N.C. ___, ___ S.E.2d ___ (2007). When there is a risk that jurors
will use an out-of-court statement for both hearsay and non-hearsay
purposes, the opposing party may request a limiting instruction to
clarify the appropriate evidentiary use of the statement. N.C.
Gen. Stat. § 8C-1, Rule 105 (limited admissibility) (“When evidence
which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted,
the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly.”).
C. Confrontation
The Sixth Amendment to the United States Constitution provides
that “[i]n all criminal prosecutions, the accused shall enjoy . .
. the right to confront witnesses against him.” U.S. Const. amend.
VI. Article I, Section 23 of the North Carolina Constitutionprovides that “[i]n all criminal prosecutions, every person charged
with a crime has the right . . . to confront witnesses against
him.” N.C. Const. art. I, § 23. “[B]ecause the United States
Constitution is binding on the states, the rights
it guarantees
must be applied to every citizen by the courts of North Carolina,
so no citizen will be 'accorded lesser rights' no matter how we
construe the state Constitution.”
State v. Jackson, 348 N.C. 644,
648, 503 S.E.2d 101, 103 (1998). For this reason, the Sixth
Amendment provides a “constitutional floor” guaranteeing the right
of every criminal defendant to confront witnesses against him,
see
id., and we apply Sixth Amendment analysis to defendant's state and
federal constitutional arguments in the case
sub judice.
In
Crawford v. Washington, the United States Supreme Court
explained that, for purposes of the Sixth Amendment, a “witness
against” a criminal defendant is an individual who gives
testimony
against the defendant. 541 U.S. 36, 49, 158 L. Ed. 2d 177
(2004)(emphasis added). Thus, a defendant must be given the
opportunity to confront witnesses who testify against him at trial.
When a witness does not appear to testify at trial, his
“testimonial statements” are inadmissible unless the State shows
that the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness.
Crawford, 541 U.S. at
53-54, 158 L. Ed. 2d at 194.
Testimony is “'[a] solemn declaration or affirmation made for
the purpose of establishing or proving some fact.'”
Id. at 51, 158
L. Ed. 2d at 192 (quoting 1 N. Webster, An American Dictionary ofthe English Language (1928)). “
Ex parte testimony at a preliminary
hearing” and “[s]tatements taken by police officers in the course
of interrogations are . . . testimonial.”
Id. at 52, 158 L. Ed. 2d
at 193. Out-of-court statements are also testimonial “when the
circumstances [surrounding their making] objectively indicate that
there is no . . . ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.”
Davis v.
Washington, ___ U.S. ___, ___, 165 L. Ed. 2d 224, 237 (2006).
However, “[t]he [Confrontation] Clause . . . does not bar the
use of testimonial statements for purposes other than establishing
the truth of the matter asserted.”
Crawford, 541 U.S. at 59, n.9,
158 L. Ed. 2d at 197, n.9;
Walker, 170 N.C. App. at 635, 613 S.E.2d
at 333. For example, in
Tennessee v. Street, the United States
Supreme Court held that a defendant's right to confront witnesses
is not violated by the trial court's admission of an out-of-court
statement for the non-hearsay purpose of rebutting the defendant's
testimony. 471 U.S. 409, 85 L. Ed. 2d 425 (1985).
Tennessee v.
Street was cited with approval in
Crawford v. Washington.
Crawford, 541 U.S. at 59, n.9, 158 L. Ed. 2d at 197, n.9. In
State
v. Walker and
State v. Jones, this Court explained that the
Confrontation Clause does not bar the use of testimonial statements
offered for the non-hearsay purposes of corroborating other
evidence and showing the effect of the statement on the listener
respectively.
Walker, 170 N.C. App. at 635, 613 S.E.2d at 333;
Jones, 329 N.C. App. at 259, 628 S.E.2d at 436-37.D. Testimony of Officer Todd Mozingo
Defendant assigns plain error to the testimony of Charlotte-
Mecklenburg Police Officer Todd Mozingo, whom the State called to
testify during its case-in-chief. On direct examination, Officer
Mozingo described how he and Officer A.S. Rice secured the crime
scene and later apprehended defendant.
In particular, Officer Mozingo testified that “a couple of
witnesses in the area tried to tell us exactly what happened. They
explained that there had been a shooting and that there was a white
car with black male suspects.” Officer Mozingo stated that he “put
that out on the radio.” Thereafter, the prosecutor asked Officer
Mozingo to describe how the investigation proceeded.
Q. What did you do next?
A. I continued to circle the area and, like,
canvass the neighborhood, speak to people.
. . .
We canvassed the neighborhood a little more
and tried to locate any other witnesses in the
area.
Q. What did you do after that?
A. After the scene_-we secured the scene, we
left the scene, I guess, a little while later.
I started a report. We left the actual scene
and I started a report.
Andy was driving_-Officer Rice was
driving. Probably an hour_- maybe an hour_-a
little more than an hour later I was doing the
report in the car on the computer, we rode
back around the same area. Some of the people
that we spoke with earlier were pointing at
this car in the 6200 block of Elgywood again.
They were pointing at the car yelling_-saying
that that was the car that we were looking
for.
Q. What did you do?
A. Well, Officer Rice was driving, and he saw
it too at the same time. The car sped away.
It backed out of the parking lot and came back
around on Elgywood.
. . . It pulled into an area and then backed out and
pulled out onto_-it backed up initially and
then pulled out onto Elgywood. It turned into
the 6100 block of Elgywood. Based [on] the
information that we had prior, we were going
to attempt to stop the car.
During cross-examination, defense counsel questioned Officer
Mozingo about the report that he produced documenting the incident.
Q. Officer Mozingo, are you familiar with a
kind of report that you do in your office
called the Officer's Internal Incident Report
. . . ?
A. Yes.
Q. In this case, you were the officer who
filed that report; is that correct?
A. The reporting officer. Yes.
Q. That report is composed of both a
narrative and answers to form questions;
correct?
A. Yes.
. . .
Q. Now, you refer in this to Witness Number
1, who you have listed as a Francisco Javier
[LaBonita].
A. Yes.
Q. That witness, according to your narrative
report, stated that he saw four black males in
a white four-door car; is that correct?
A. Initially, yes.
Q. That was what he saw at the shooting
correct?
Q. Is Mr. [LaBonita] here to testify today?
A. Not that I am aware of. No.
On re-direct, the State followed up on defense counsel's
question about LaBonita.
Q. [Defense Counsel] asked you if you recall,
that a witness out there named Francisco
Javier LaBonita said some things about what he
had seen?
A. Yes.
Q. He also pointed out the defendant, didn't
he?
A. Yes. At the show-up, yes.
1.
Defendant argues that Officer Mozingo's direct examination
testimony that “[s]ome of the same people that we spoke with
earlier were pointing at this car in the 6200 block of Elgywood
again. They were pointing at the car yelling_-saying that that was
the car that we were looking for” was inadmissible hearsay and that
its admission violated the Sixth Amendment to the United States
Constitution. We disagree.
The statements of people who “were pointing at” defendant's
car, and “yelling . . . that that was the car [Officers Mozingo and
Rice] were looking for” were elicited by the State when asking
Officer Mozingo to describe how his investigation proceeded and
were offered to show why Officer Mozingo and Officer Rice turned on
the blue lights and followed the white car, which had “sped away”
from the crime scene. Thus, these statements were admissible to
show their effect on the listener, Officer Mozingo, and to explain
the subsequent course of his investigation. These are purposes
other than the truth of the matter asserted. For the reason stated
above, the disputed testimony is not hearsay and its admission does
not violate either N.C. Gen. Stat. § 8C-1, Rule 802, or defendant's
right to confront witnesses against him. This assignment of error
is overruled.
2.
Defendant also argues that Officer Mozingo's re-direct
testimony that LaBonita “pointed out” defendant “at the show-up,”
was inadmissible hearsay. Although the State responds thatLabonita's action is not a “statement” within the meaning of N.C.
Gen. Stat. § 8C-1, Rule 801, we conclude that “pointing out” a
suspect at a “show-up” is nonverbal conduct intended to communicate
an assertion. We agree with defendant that the disputed testimony
was offered by the State to prove the truth of the matter asserted
by LaBonita, which is that LaBonita identified defendant as the
person who committed the crimes at issue. Thus, the statement is
inadmissible hearsay pursuant to N.C. Gen. Stat. § 8C-1, Rules 801
and 802.
We further agree that LaBonita's statement is testimonial.
When a witness identifies a suspect at a “show up,” the “primary
purpose” of the identification is usually to prove a fact “relevant
to later criminal prosecution”: that the suspect committed a
crime. On the record sub judice we take “pointing out” at a “show
up” to mean selecting the suspect from a group of individuals
detained at the crime scene by responding police officers. In
“pointing out” defendant, LaBonita made a “testimonial statement.”
Because the State has not shown that LaBonita was unavailable to
testify at trial or that defendant had a prior opportunity to
cross-examine LaBonita, admission of LaBonita's statement violates
defendant's right to confront witnesses against him. The trial
court erred by admitting Officer Mozingo's testimony concerning
LaBonita.
Even so, we conclude that admission of the disputed testimony
is not error for which defendant is entitled to a new trial,
meaning the admission was not plain error. See State v. Odom, 307N.C. 655, 660-61, 300 S.E.2d 375, 378-79 (1983) (adopting the plain
error rule in North Carolina but noting that the adoption “does not
mean” that every error “mandates reversal regardless of the
defendant's failure to object”). Plain error is error “so
fundamental as to amount to a miscarriage of justice or which
probably resulted in the jury reaching a different verdict than it
otherwise would have reached.” Bagley, 321 N.C. at 214, 362 S.E.2d
at 251. In State v. Lemons, the North Carolina Supreme Court held
that a trial court did not commit plain error by admitting a co-
defendant's out-of-court statement that the defendant was “the
shooter” during a capital sentencing proceeding. 352 N.C. 87, 97-
98, 530 S.E.2d 542, 548 (2000), cert. denied, 531 U.S. 1091, 148 L.
Ed. 2d 698 (2001). Although the defendant argued that admission of
the statement violated his constitutional right to confront the co-
defendant, the Supreme Court emphasized that “there was evidence in
addition to [the co-defendant's] statements supporting a jury
decision not to find the (f)(4) mitigating circumstance or the
nonstatutory mitigating circumstance that defendant was not the
shooter.” Id. at 97, 530 S.E.2d at 548. Similarly, in State v.
Locklear, this Court held that a trial court did not commit plain
error by admitting evidence of the defendant's prior bad acts in
light of substantial evidence of the defendant's guilt presented at
trial. 174 N.C. App. 547, 553-54, 621 S.E.2d 254, 258 (2005).
Lemons and Locklear guide our plain error analysis in the case sub
judice. Here, the State presented ample independent evidence of
defendant's guilt at trial to support defendant's convictions.
Both the victim Sanchez and eyewitness Garcia identified defendant
as the shooter at the crime scene. They also identified defendant
in open court as the shooter. Both witnesses described the car in
which the shooter was traveling and that description matched the
car from which defendant fled before being apprehended. Defendant
was seen driving this car near the crime scene less than one hour
after the shooting and fled from the car when approached by
Officers Mozingo and Rice. Based on this evidence, and our review
of the record in total, we conclude that there was ample evidence
of defendant's guilt, independent from LaBonita's statement.
For the reasons stated above, we conclude that the trial court
did not commit plain error by admitting LaBonita's statement. The
error was not “so fundamental as to amount to a miscarriage of
justice” and did not “probably result[] in the jury reaching a
different verdict than it otherwise would have reached.” This
assignment of error is overruled.
E. Testimony of Officer A.S. Rice
Defendant assigns plain error to the testimony of Charlotte-
Mecklenburg Police Officer A.S. Rice, whom the State also called to
testify during its case-in-chief. On direct examination, Officer
Rice described the crime scene and the subsequent apprehension of
defendant.
In particular, Officer Rice testified that after securing the
crime scene, he and Officer Mozingo patrolled the area in hispolice vehicle. While driving near the 6200 block of Elgywood
Lane, Officer Rice noticed “a white, small four-door car in the
parking lot there.” Moreover, Officer Rice testified that “[t]here
were Hispanic males standing outside” and “[t]hey all started
pointing frantically at the car.” Thereafter, Officer Rice “did a
U-turn” to approach the white car, which “sped off.” When Officers
Rice and Mozingo caught up with the white car, defendant and one
other individual fled on foot. Officers Rice and Mozingo followed.
The State asked Officer Rice what happened after he and
Officer Mozingo apprehended defendant:
Q. What happened then?
A. At that time, other officers start[ed]
arriving at the scene. Officer Quilez arrived
with either a witness or a victim. Actually, I
believe at that time we put him in the car_-
[defendant]. We told everybody that we had
two subjects that had been arrested.
We started searching the [defendant's]
car. There was a .45 caliber, Derringer that
was laying in the backseat of the car. It was
just laying in the middle of the backseat.
Officer Mozingo got the gun. It also had
a live round in it as well. Then I think at
that time Officer Quilez arrived with the
witness. I got my--[Defendant] was in our
car. I got [defendant] out of the backseat.
Everybody nodded that that was the subject
that had robbed or attempted to rob them.
Q. What happened after that?
A. At that time, we transported or I
transported [defendant] to the law enforcement
center at 601 East Trade Street to be
interviewed by the detectives.
On re-direct, the State asked Officer Rice “[d]id anybody while you
were out there--after you had caught the defendant, did anybody
say, 'No. That is not him?,'” and Officer Rice responded, “No.”
1.
Defendant argues that Officer Rice's description of the crime
scene when he and Officer Mozingo returned, including his testimony
that “[t]here were Hispanic males standing outside” who “all
started pointing frantically at the car,” was inadmissible hearsay
and that its admission violated the Sixth Amendment to the United
States Constitution. Officer Rice's testimony is functionally
equivalent to the testimony of Officer Mozingo addressed above.
For the reasons stated above, we conclude that these statements are
not hearsay; rather they were admissible to show their effect on
Officer Rice, who responded by turning on the blue lights, making
a U-turn, and following the white car. Accordingly, admission of
these statements does not violate either N.C. Gen. Stat. § 8C-1,
Rule 802, or defendant's right to confront witnesses against him.
This assignment of error is overruled.
2.
Defendant also argues that Officer Rice's testimony that when
he removed defendant from the backseat of his vehicle, “[e]verybody
nodded that [defendant] was the subject that had robbed or
attempted to rob them,” was inadmissible hearsay and that its
admission violated the Sixth Amendment to the United States
Constitution. We disagree. In so doing, we consider the statement
in context, concluding that the term “everybody,” as used by
Officer Rice, actually referred to Sanchez and Garcia who asserted
that defendant “had robbed or attempted to rob them.” Thestatement was admissible for the non-hearsay purpose of
corroborating their testimony.
The testimony of Officer Rice immediately preceding the
challenged statement was that “[a]t that time, other officers
start[ed] arriving at the scene. Officer Quilez arrived with
either a witness or a victim.” Additionally, Sanchez and Garcia
both testified on direct examination that they identified defendant
as the shooter at the scene after a police officer removed
defendant from a patrol car where he was being detained.
Sanchez testified that he identified defendant as the shooter
upon his return from the hospital.
A. When I arrived at the parking lot right
there in front of the apartment, this young
child that came by told me that there was a
police officer on the other side of the
building.
Q. What time was that?
A. I would say around 7:30.
Q. What did you do when you found out that
the police were nearby?
A. The child said that the policeman was
saying that he wanted to see me.
Q. What did you do?
A. I went to where he was.
Q. What did he say when you got there?
A. He said, "If I show you somebody, can you
identify that person as being the one who shot
you?"
Q. What did you say?
A. I said, "Yes. It's possible that I can do
that."
Q. So then what happened?
A. Then the officer went to his car. He took
out the subject, and I identified awhile ago.
Q. You identified awhile ago?
A. The one I identified here in court.
Q. Oh, okay. So the officer took the
defendant out of the police car at that point?
A. Yes.
Q. What happened then? A. I said, “Let's see him. It's not somebody
else. It's him.”
Sanchez also identified defendant during the trial in open court.
On cross-examination, defense counsel attempted to impeach
Sanchez with the statement he gave Officer Quilez at the scene. In
particular, defense counsel questioned Sanchez about the age,
height, and physical build of the man who shot him, attempting to
demonstrate that Sanchez's prior statement was inconsistent with
his testimony on direct examination.
(See footnote 1)
Thereafter, the State called Garcia as a witness. On direct
examination, Garcia testified that he described the shooter to
responding police officers. He explained that when defendant and
his friends returned to the parking lot in the white car, he
notified the police by “signal[ing] to them and indicat[ing] that
they were the guys.” The State then elicited the following
testimony from Garcia:
Q. When you say “They” who are you talking
about?
A. That black man there (indicating).
Q. Who else?
A. And his friends.
Q. What happened after that?
A. Then the police caught him. Then at that
moment, they asked me if I recognized the one
who had assaulted Jose [Sanchez, the victim].
Q. Where were you when they asked you that?
A. I was there in the parking lot where they
caught him.
Q. Where was the defendant when the police
asked you that?
A. He was in the patrol car, but they brought
him out.
On cross-examination, defense counsel also attempted to
impeach Garcia with the statement he gave Officer Quilez at the
scene. In particular, defense counsel questioned Garcia about the
clothing worn by the shooter, attempting to demonstrate that
Garcia's identification of defendant was inconsistent with his
prior description of the shooter, in which Garcia had stated that
the shooter wore a white shirt and khaki pants.
Based on the context surrounding the disputed portion of
Officer Rice's testimony, the testimony of Sanchez and Garcia, and
our review of the record in total, we conclude that the term
“everybody,” as used by Officer Rice, actually referred to Sanchez
and Garcia who asserted that defendant “had robbed or attempted to
rob them.” The statement was admissible for the purpose of
corroborating their testimony, which is a purpose other than the
truth of the matter asserted. Accordingly, the statement is not
hearsay and its admission does not violate either N.C. Gen. Stat.
§ 8C-1, Rule 802, or defendant's right to confront witnesses
against him.
(See footnote 2)
This assignment is overruled.
3.
Defendant also argues that the trial court erred by admitting
Officer Rice's re-direct testimony that nobody at the scene said
defendant was not the shooter. In support of his argument,defendant contends that the disputed testimony was inadmissible
hearsay and that its admission violated the Sixth Amendment to the
United States Constitution. We disagree.
As explained above, “the nonverbal conduct of a person” is
only a statement “if it is intended by him as an assertion.” N.C.
Gen. Stat. § 8C-1, Rule 801(a)(2). Sometimes circumstances
surrounding a witness's silence indicate that the silence is
intended as an assertion. For example, a defendant's silence may
be considered an admission when the defendant fails to deny a
statement implicating him in the crime and a reasonable person
would have denied involvement under the circumstances.
State v.
Thompson, 332 N.C. 204, 420 S.E.2d 395 (1992). Here, there is no
evidence that the silence of individuals at the scene was intended
by those present to be an assertion implicating defendant.
Accordingly, the silence of individuals present at the crime scene
is not a “statement” pursuant to N.C. Gen. Stat. § 8C-1, Rule
801(a)(2). Admission of the disputed testimony does not violate
either N.C. Gen. Stat. § 8C-1, Rule 802, or defendant's right to
confront witnesses against him. This assignment of error is
overruled.
F. Testimony of Officer R. Quilez
Defendant assigns plain error to the testimony of Charlotte-
Mecklenburg Police Officer R. Quilez, whom the State also called to
testify during its case-in-chief. On direct examination, Officer
Quilez testified that he interviewed Sanchez at the hospital and
then went to the crime scene. Officer Quilez described the crime scene when he arrived.
Q. What did you see or do there?
A. After I got over there, there was a big
commotion over there. People all over the
place. I got out of the vehicle. There was a
Hispanic Male who was a little upset. He was
pointing towards a black female who was there.
I got out and asked him to calm down. I
asked him what was going on. He told me that
the female there was in the vehicle with the
people that shot the victim.
I heard Officer Mozingo saying that he
had another one in custody. I started
questioning some of the people. I found a
person there_which I can't recall his name at
this moment_I talked to him for a few minutes.
He told me that_he repeated to me what had
happened.
What he told me was similar to what the
victim had told me about the incident. I
asked him if he was able to identify the
shooter if he saw him again. He told me, yes,
because he had seen his face.
At that time I heard there was a third
suspect who was apprehended. We went over
there. Everybody was coming back over to the
scene where they had the guys in custody. We
got one of the guys out of the patrol car. I
asked the guy if he could identify the
individual that they took out of there.
Then, I think, he said no; that was not
one of them. Then the guy that was the
defendant . . ._I asked him, “Is that the
guy?” He said, “Yes. That is the guy.”
Then I went around to start looking to
see if somebody knew where the victim was. I
knew he was getting ready to get out of the
hospital. I said, “Can somebody go get the
victim or tell me where he is?”
The lady who was there said he is at the
drugstore; he should be back shortly, within a
few minutes. People started going around to
locate the victim, and they found him and
brought him over to the scene.
I remember I went over to where he was.
At that time they took one of the guys that we
had in custody. At that time I thought it was
Tyrone_he came out of the car. The victim
said, “That is him.” I asked him again, “Are
you sure?”
He said, “Yes.” “Are you sure?”
“Yes.”
Shortly thereafter, the State presented Officer Quilez with
the statement made by Garcia at the scene. Garcia's statement
provided: “This statement is written for me by Officer R. Quilez
on 5-23-03.” The State then asked Officer Quilez to read Garcia's
statement into evidence.
1.
Defendant argues that the trial court erred by admitting
Officer Quilez's testimony that a witness, whose name Officer
Quilez could not remember, identified defendant as the shooter. In
support of his argument, defendant contends that the disputed
testimony was inadmissible hearsay and that its admission violated
the Sixth Amendment to the United States Constitution. We
disagree. In so doing, we consider the statement in context and
conclude that the unnamed witness was Garcia. In fact, our review
of the transcript shows that the State asked Officer Quilez to read
Garcia's statement aloud for the purpose of refreshing Quilez's
memory and establishing Garcia as the unnamed witness. Garcia's
written statement is consistent with Officer Quilez's preceding
testimony.
Garcia's prior consistent statement was admissible for the
purpose of corroborating his earlier testimony. This is a purpose
other than the truth of the matter asserted. For this reason the
statement is not hearsay and its admission does not violate either
N.C. Gen. Stat. § 8C-1, Rule 802, or defendant's right to confront
witnesses against him. This assignment of error is overruled.G. Testimony of Detective Randy Carroll
Defendant assigns plain error to the testimony of Charlotte-
Mecklenburg Police Department Detective Randy Carroll, whom the
State also called to testify during its case-in-chief. Detective
Carroll interviewed defendant at the police station. During the
interview, defendant told Detective Carroll that he was at home
with his stepmother Cheryl Madison at the time of the shooting, and
that if Detective Carroll called Madison, she would corroborate his
alibi. Detective Carroll then called Madison.
On direct examination, Detective Carroll testified that
[Madison] said she had left their home early
that morning about 10:00am to go to the store.
She said that [defendant] was at home at that
time. He had just gotten out of bed. She
said that she thought he left the house about
noon and return[ed] home about 3:00 p.m. and
then [left] at 4:00 p.m. She said she
couldn't remember what he was wearing during
that day.
1.
Defendant argues that Detective Carroll's testimony recounting
Madison's statement was inadmissible hearsay and that its admission
violated the Sixth Amendment to the United States Constitution.
The State responds that Detective Carroll's testimony does not
actually contain statements made by Madison; rather, the State
argues that the testimony is “the recollection of [Detective
Carroll] that [Madison] did not provide [d]efendant with an alibi.”
The State further argues that because “the disputed evidence does
not purport to show where [d]efendant actually was, or what he wasdoing,” the evidence “is not offered for the truth” of the matter
asserted. We disagree.
Madison told Officer Carroll that defendant “left the house
about noon and return[ed] home about 3:00 p.m. and then [left] at
4:00 p.m.” on the day of the shooting. These words are an “oral
assertion,” which is a “statement” for purposes of N.C. Gen. Stat.
§ 8C-1, Rule 801(c). The “matter asserted” is that defendant was
not home between noon and 3:00 p.m. and after 4:00 p.m. on the day
of the shooting, and Madison's statement was offered to prove this
fact; thus, it was offered for its “truth.” Therefore, the
statement is inadmissible hearsay pursuant to N.C. Gen. Stat. § 8C-
1, Rules 801 and 802.
We further agree that Madison's statement is testimonial.
When a witness is asked by an investigating detective to confirm
the alibi put forth by a defendant, that witness' response is made
for the “primary purpose” of establishing a fact “relevant to later
criminal prosecution”: that the defendant's alibi is true or
false. By stating that defendant “left the house about noon and
return[ed] home about 3:00 p.m. and then [left] at 4:00 p.m.,”
Madison made a “testimonial statement.” Because the State has not
shown that Madison was unavailable to testify at trial, or that
defendant had a prior opportunity to cross-examine Madison,
admission of Madison's statement violates defendant's right to
confront witnesses against him. Even so, we conclude that admission of the disputed testimony
was not plain error. As discussed above, the State presented
substantial evidence of guilt, independent of Madison's statement.
Accordingly, we hold that the trial court did not commit plain
error by admitting Madison's statement. The error was not “so
fundamental as to amount to a miscarriage of justice” and did not
“probably result[] in the jury reaching a different verdict than it
otherwise would have reached.” This assignment of error is
overruled.
III. Restitution
Defendant also assigns error to the trial court order awarding
Sanchez restitution in the amount of $871.65. This is the amount
of medical expenses incurred by Sanchez as a result of the assault.
A. Standard of Review
When determining the amount of restitution, “the trial court
is not required to make findings of fact or conclusions of law,”;
however, “the amount of restitution must be limited to that
supported by the record.” N.C. Gen. Stat. § 15A-1340.36 (2005).
On appeal, this Court considers
de novo whether the restitution
order was “'supported by evidence adduced at trial or at
sentencing.'”
State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d
228, 233 (2004) (quoting
State v. Wilson, 340 N.C. 720, 726, 459
S.E.2d 192, 196 (1995)). Although defendant did not object to the
trial court's entry of the restitution order, N.C. Gen. Stat. §
15A-1446(d)(18) provides that an appellate court may review error
asserting that a defendant's “sentence . . . was illegally imposedor otherwise invalid as matter of law[,]” even when “no objection
. . . has been made in the trial division.”
See also Shelton, 167
N.C. App. at 233, 605, S.E.2d at 233.
B. N.C. Gen. Stat. § 15A-1340.36 (2005).
Defendant argues that the trial court failed to consider
factors set forth in N.C. Gen. Stat. § 15A-1340.36 related to his
financial ability to pay restitution. For this reason, defendant
requests a new sentencing hearing.
N.C. Gen. Stat. § 15A-1340.36(a) provides
In determining the amount of restitution to be
made, the court shall take into consideration
the resources of the defendant including all
real and personal property owned by the
defendant and the income derived from the
property, the defendant's ability to earn, the
defendant's obligation to support dependents,
and any other matters that pertain to the
defendant's ability to make restitution, but
the court is not required to make findings of
fact or conclusions of law on these matters.
The amount of restitution must be limited to
that supported by the record, and the court
may order partial restitution when it appears
that the damage or loss caused by the offense
is greater than that which the defendant is
able to pay. If the court orders partial
restitution, the court shall state on the
record the reasons for such an order.
This statute expressly requires the trial court to “take into
consideration” a number of factors “that pertain to the defendant's
ability to make restitution,” but also expressly provides that the
trial court “is not required to make findings of fact or
conclusions of law on these matters.” N.C. Gen. Stat. § 15A-
1340.36(a). This Court has remanded a defendant's case for a new
sentencing hearing when the “record . . . reveal[ed] that the trialcourt did not consider
any of the factors related to [the]
defendant's ability to pay the full amount of restitution.”
State
v. Mucci, 163 N.C. App. 615, 626, 594 S.E.2d 411, 419 (2004)
(emphasis added). However, when there is “some evidence as to the
appropriate amount of restitution, the recommendation will not be
overruled on appeal.”
State v. Davis, 167 N.C. App. 770, 775, 607
S.E.2d 5, 10 (2004) (quoting
State v. Hunt, 80 N.C. App. 190, 195,
341 S.E.2d 350, 354 (1986)).
Here, the record shows that the trial court considered
defendant's insurance situation, age, indigency, education, and
living arrangements during sentencing. The trial court also
provided defendant with an opportunity to earn the ordered
restitution through work release. This is sufficient evidence of
defendant's financial resources and obligations from which the
trial court could determine an appropriate amount of restitution.
For the reasons stated above, we conclude that the trial court
properly considered factors related to defendant's financial
ability to pay restitution as set forth in N.C. Gen. Stat. § 15A-
1340.36. This assignment of error is overruled.
IV. Ineffective Assistance of Counsel
Defendant assigns error to defense counsel's failure to object
to the disputed testimony of Officers Mozingo, Rice, and Quilez,
and Detective Carroll as discussed above. Defendant also assigns
error to defense counsel's failure to object to the trial court
order awarding restitution to Sanchez. In support of these
assignments, defendant argues that defense counsel's failure toobject deprived him of his Sixth Amendment right to effective
assistance of counsel.
A. Standard of Review
The two-part test for ineffective assistance of counsel is the
same under both the state and federal constitutions.
State v.
Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985). A
defendant must first show that his defense counsel's performance
was deficient and, second, that counsel's deficient performance
prejudiced his defense.
Strickland v. Washington, 466 U.S. 668,
687, 80 L. Ed. 2d 674, 693 (1984). “To establish deficient
performance” defendant “must show that counsel's representation
'fell below an objective standard of reasonableness.'”
Wiggins v.
Smith, 539 U.S. 510, 521, 156 L. Ed. 2d 471, 484 (2003) (quoting
Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693). “[T]o establish
prejudice, a 'defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'”
Id. at 534,
156 L. Ed. 2d at 493 (quoting
Strickland, 466 U.S. at 694, 80 L.
Ed. 2d at 698). “'A reasonable probability is a probability
sufficient to undermine confidence in the outcome.'”
Id. (quoting
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).
B. Hearsay
As stated above, we conclude that the trial court properly
admitted all but two of the disputed statements to which defendant
assigned error: Officer Rice's testimony that LaBonita “pointed
out” defendant at a “show up” and Detective Carroll's testimonythat Madison contradicted defendant's alibi. Because the remaining
statements are not hearsay, and their admission did not violate
either N.C. Gen. Stat. § 8C-1, Rule 802 or defendant's right to
confront witnesses against him, defense counsel's performance in
declining to object to their admission was not deficient.
Assuming, without deciding, that defense counsel's performance
in failing to object to admission of the statements made by
LaBonita and Madison was deficient for purposes of the Sixth
Amendment, we conclude that the deficiency was not prejudicial. In
undertaking plain error review, we have already determined that
these errors were not “so fundamental as to amount to a miscarriage
of justice or which probably resulted in the jury reaching a
different verdict than it otherwise would have reached.”
Bagley,
321 N.C. at 214, 362 S.E.2d at 251. Likewise, we conclude, for
purposes of Sixth Amendment ineffective assistance of counsel
analysis that there is
not “'a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different.'”
Wiggins, 539 U.S. at 534, 156 L. Ed. 2d at
493 (quoting
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).
Accordingly, this assignment of error is overruled.
C. Restitution
As stated above, we have already concluded that the trial
court properly considered factors related to defendant's financial
ability to pay restitution as set forth in N.C. Gen. Stat. § 15A-
1340.36, and that the trial court did not err in entering a
restitution order awarding $871.65 to Sanchez. Because the trialcourt did not err by entering the restitution order, defense
counsel's performance in declining to object to entry of the order
was not deficient. This assignment of error is overruled.
V. Conclusion
For the reasons stated above we conclude that defendant
received a fair trial and sentencing hearing free from plain error.
The trial court judgment and restitution order are, therefore,
affirmed.
NO ERROR IN PART; AFFIRMED IN PART.
Judges TYSON and STEPHENS concur.
Report per Rule 30(e).
Footnote: 1